New Ohio Supreme Court Ruling on Expungements

The Supreme Court of Ohio has just issued an important ruling which clarifies some of the issues defendants and their lawyers are faced with when dealing with whether or not a defendant can obtain an expungement of multiple convictions stemming from a single event of criminal conduct. In State v. Futrall, 2009-Ohio-5590, the Supreme Court of Ohio held that if any of the criminal convictions stemming from the same series of events are barred from being expunged, then all of the separate convictions from that series of events cannot be expunged. For instance, if the defendant's course of conduct resulted in 4 separate convictions, if only one of those convictions is barred by statute from being expunged, then all of the convictions from that case are also barred from being expunged. Some types of convictions are barred by law from being expunged (for example, various crimes of violence and DUIs). If the defendant after a trial or as part of a plea negotiation is found guilty of one of these convictions, her/she cannot get any of what would otherwise be expungible convictions expunged. Thus, defendants and thier lawyers must be very cautious when considering this new ruling when deciding to go t trial or enter a plea - especially if that defendant has aspirations of getting that particular conviction(s) expunged in the future.

Spousal Support Payors Have to Watch Their Expenses

The Eighth District Court of Appeals has essentially ruled that a domestic relations court can rely on the monthly expenses voluntarily paid by an ex-husband as method of determining the actual functional income of the ex-husband for spousal support purposes. In Feldman v. Feldman, the Court held that it was proper for a magistrate to rely on the monthly expenses of the ex-husband - as opposed to the stated income of the ex-husband - to determine the amount of spousal support the ex-husband must continue to pay to the ex-wife. Thought: If in your divorce your actual monthly expenses exceed what you claim is your monthly income, you have some explaining to do.

More on Arbitration Agreements and Awards

On Ohio Court of Appeals has just held that if you sign a contract that has an arbitration provision (i.e. where the parties agree that all disputes under the contract must be arbitrated rather than litigated in a courtroom by a judge or jury), and, further, if the arbitrator issues a arbitration judgment against you, a court must ratify/confirm that judgment if the winning party applies to have the court do so. In NCO v. Reese, the court held that a trial court had erred when it failed to ratify/confirm an arbitration ruling, and that the trial court in fact HAS to ratify/confirm the arbitration ruling UNLESS the losing party can prove one of VERY limited number of factors. Thought: Be very careful about signing any contract containing an arbitration clause - you may be waving many of the rights you would otherwise have in a courtroom.

Cognovit Note Can Backfire

The Eighth District Court of Appeals has recently held that cognovit notes can, if improperly drafted, can backfire on the drafter. (Cognovit notes are special promissory notes - controlled by statute- which give the holder of the note the ability to get an immediate and automatic judgment if the debtor defaults - without the normal delay associated with normal litigation). If the language in the cognovit note is defective (that is, not drafted according to the statutory mandate), any judgment rendered on the note is void - and unless the complaint is properly served upon the defendant, any other normal judgment rendered against the defendant in a normal litigation process is void as well. In Adams v. Bennett, the Court made it clear that anyone (be it a pro se litigant or a lawyer) who incorrectly drafts a cognovit note may essentially have a worthless document. Thought: Forget the store bought or non-lawyer drafted cognovit notes if the loan in question is important to you.

Our recent success in real estate litigation.

In a recent success for clients of ours, we were able to prevent their eviction when we filed documents which alleged that the real property they were living in was actually their property that they were buying indirectly from their business partner who was trying to evict them. Given the fact that the clients had worked out a business arrangement with the landlord/business partner wherein the clients lived in the condominium under a land contract business in partial return for their contribution to the business, the landlord was prevented from proceeding on his expedited eviction. A very big day for those clients.

Another arbitration clause ruling

In another ruling from the Supreme Court of Ohio on the issue of the enforceability of arbitration clauses, the Court has once again ruled that clauses requiring arbitration will be broadly enforced, and that almost any aspect any issue arising from the contractual arrangement will have to be arbitrated if the contract contains an arbitration clause. In Alexander v. Wells Fargo Financial Ohio 1, Inc., the Supreme Court of Ohio ruled that even if the breach of a contact would trigger statutory penalties, the penalties still have to be arbitrated. Generally speaking, arbitration is preferred by businesses because arbitrators are often business insiders (who are presumed to have pro-business leanings) and because the requirement to arbitrate a claim essentially eliminates the ability to prosecute a class action against a business. Thought: If your business is entering into a contact with a bigger business, be careful to read the contract to see whether you want to waive your right to have a trial court resolve your dispute rather than an industry insider.

Ex-Wife Can Use Fraudulent Transfer Act to Go After Ex-Husband’s Assets

In a recent decision by the Cuyahoga County Court of Appeals, the Court held that an ex-wife could successfully void a transfer/sale of a business asset by the ex-husband if the ex-wife could prove that the transfer/sale was done to put the assets out of reach of the ex-wife. In the case of Dinu v. Dinu, the Court held that if the wife had obtained a Domestic Relations Court support arrearage amount (in this case approximately $20,000), and the ex-husband had transferred/sold some business assets to prevent the ex-wife from seizing the assets to pay the judgment, she could sue the ex-husband and the purchasers of the assets in the General Division Common Pleas Court to void the transfer (i.e. she did not have to utilize the Domestic Relations Court to try to void the transfer). Thought: This woman may have had the ability to try to undue the transfer by adding defendants to the Domestic Relations Court divorce action (something the law certainly allows while the divorce is pending), but she chose another venue. Looks like this gives ex-spouses options when faced with this type of asset transfer activity.

27-year Wait is Too Long to Find Assets

In a recent decision by the Cuyahoga County Court of Appeals, the Court held that a woman waited too long to try to reopen her divorce case on the allegation that a pension asset was hidden from her by her ex-husband. In the case of Rodgers v. Rodgers, the Court held that the ex-wife’s wait of 27 years was simply too long – even though it was somewhat clear that the large pension asset had been hidden from her at the time of her divorce. Thought: Do you homework before you sign a divorce papers or divorce decree and don’t dilly dally if you learn or believe that your ex-spouse his some assets from you during your divorce).

The Municipal Courts in this Area

There is a certain business operation in suburban misdemeanor criminal justice. Suburban municipal courts handle all of the suburban misdemeanor prosecutions in the Northeastern Ohio area. Some municipal courts handle just the city where they are located - like Lakewood, South Euclid, East Cleveland, Euclid and Cleveland Heights. Some municipal courts handle multiple cities - like Parma (8 cities), Rocky River (5 cities), Garfield Heights (8 cities), Berea (6 cities), Bedford (13 cities), Stow (16 cities), Lyndhurst (6 cities), and Elyria (10 cities). Often a client has been initially confused as to why their case went to a municipal court that was located outside of the city where they were alleged to have committed a traffic or criminal offense. Essentially some cites find it much easier to have the business of their trial court cases essentially “outsourced” to another city. In fact, often cities actually compete to get the business of a municipal court operation. Recently, one municipal court which served over ten cities relocated from one city to another because the new city essentially offered a better deal, and, of course, a brand new courthouse. Our active practice has taken us to all of these courthouses.

Recent United States Supreme Court Sentencing Case and Courts of Appeals in Ohio

Recently the United States Supreme Court came out with a decision (Oregon v. Ice) that was an attempt to further clarify an area of sentencing law that has plagued the courts for almost a decade. What can trial court judges take into consideration when they are sentencing a person for a plea or a conviction? One continuing constitutional theory (started by two United States Supreme Court cases of Apprendi v. New Jersey and Blakely v. Washington) is that if there are facts that will increase a sentence, then the due process clause of the United States Constitution requires that a jury also find those facts beyond a reasonable doubt as well. For instance, if a defendant is found guilty of a theft, and the judge may sentence the defendant for more time if the theft involved an elderly person, then the law is that a jury must find that the case involved an elderly person before the judge imposes that additional time. Oregon v. Ice was an attempt to clarify this issue further. That case allowed a trial court to impose “consecutive” sentences (when a defendant is found guilty of more than one offense) even if the jury did not make a legal or factual determination about the factor that the judge used to impose the consecutive sentence.

Recent United States Supreme Court Search Case and Courts of Appeals in Ohio.

Recently the United States Supreme Court came out with a decision that has somewhat redirected the analysis that courts in the United States must use in what are commonly referred to as car search cases (i.e. where police search cars incident to an arrest). This case is called Arizona v. Gant, which, in real short summary, now forbids police officers from searching a car in most circumstances once the police have arrested that driver/passenger and that driver/passenger is away from the car. Courts in the United States, including Courts of Appeals in Ohio, are now forced to deal with this new case, and, in more than a few circumstances, are suppressing the results of what are now (i.e. after the issuance of Arizona v. Gant) illegal searches. Gant, and the developing body of trial court and court of appeals cases that are now applying Gant, are causing a good amount of new motion-to-suppress work for many police, prosecutors, defense lawyers and judges.

What is Subrogation – and How Subrogation Affects Personal Injury Claims.

When a person receives medical services as a result of an accident, the medical providers and/or the medical bill payors (e.g. medical insurance companies, Medicaid, Medicare, or Worker’s Compensation) almost always have what the law calls a “subrogation” claim on any monies that the injured person may end up collecting from the negligent party. In short, if the injured party gets compensated for the injury, the subrogation concept is that they essentially must pay these entities back for the medical bills or medical bills payments made by these entities. This subrogation area of personal injury law gets more complicated each day, with state statutes and federal statutes and medical insurance contracts getting more involved. Plaintiffs (and their lawyers) must be very careful to protect the subrogation interests of these entities – or they themselves can get sued in connection with the personal injury claim. It is very important for the client and the lawyer to identify and monitor the subrogation issues in the claim so there are no surprises when or after the client finally receives compensation.

The Importance of “Honesty” in Personal Injury Claims.

A recent article written by a personal injury attorney in Virginia confirms our own experiences in the personal injury world. In short, be honest. Be honest to your lawyer and with your medical providers. This means telling them what you really recall from the accident in question, and this also means telling them about all of the other accidents and injuries that you have sustained in the past. Remember, insurance companies can talk to each other and actually look up your prior claims. Further, almost all insurance companies (and the lawyers that work for them) will have the legal ability to research much of your medical history. We have seen more disasters than we wanted to when a client either failed to tell us or the treating doctors about the real facts that lead to the injury or the fact that they had prior injuries or claims. What would have been rather valid and compensable injuries evaporated (in a nuclear explosion) when the insurance company (or its lawyers) found a discrepancy, lie or even an exaggeration in the client’s story or medical treatment. Juries are already skeptical enough these days about even serious and legitimate claims. Lies or exaggerations not only feed that skepticism, they essentially can kill the claim altogether.

“Open and Obvious Doctrine” remains a strong defense in Ohio.

The Supreme Court of Ohio (Lang v. Holly Mill Hotel) recently held that an older legal defense called the “open and obvious doctrine” is still good law in Ohio. This legal doctrine holds that if a jury finds that a hazard located on a residential or commercial is so “open and obvious,” then an injured person cannot recover for injuries received from the hazard. Even if the hazard on the property in question results in building or housing code violations, the property owner can still argue that the hazard was so “open and obvious” that the injured person should have noticed the hazard. Thought: Just like your parents told you when you were younger, “watch your step fella.”

New Jersey Appeals Court Ruling on DUI Case Where Defendant Asleep at the Wheel

Reprint from the New Jersey Law Journal (7/28/2009)
Being drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can't carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.
Though unpublished, the ruling is notable for its departure from the New Jersey courts' usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.
In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.

O'Shea & Associates Note:
Ohio may have addressed this problem when it enacted a law called "physical control." Under that newer statute (RC 4511.194), a person may be convicted for being under the influence in a non-moving/parked car. The penalties for a violation of this statute are somewhat less that for a violation of the normal DUI statutes (RC 4511.19/4511.191). Many experienced DUI lawyers try to get a prosecutor to offer a DUI defendant the opportunity to plea to a "physical control" violation. Looks like New Jersey may have to play catch-up to Ohio on this issue.

President Obama Nominates New Supreme Court Justice

President Obama just nominated a new candidate for the United States Supreme Court. This nominee will replace the outgoing/retiring Justice Souter. If confirmed by Congress, United States Federal Court of Appeals Judge Sonia Sotomayor would be the third female justice and the first Hispanic justice in the history of the United States Supreme Court. After graduating summa cum laude from Princeton, she went to Yale Law School. Judge Sotomayor, a former prosecutor who also practiced law for a New York firm, has served for more than a decade on the Court of Appeals for the Second Circuit, based in New York City. Bill Clinton nominated Sotomayor for the U.S. Court of Appeals for the Second Circuit in 1997. George H. W. Bush nominated Sotomayor as a federal judge in 1991 -- a position that made Sotomayor the youngest judge in the Southern District of New York and the first Hispanic federal judge in the state.

United States Supreme Court Ruling on Police Interviews of Defendants in Absence of a Lawyer

The United States Supreme Court issued an important and law-changing decision this week on the issue of whether police may interview a defendant in the absence of his lawyer. In the case of Montejo v. Louisiana (see http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf), the United States Supreme Court held that police may in fact interview a defendant even if the defendant has a known lawyer if the defendant voluntarily chooses to speak with the police. This watershed decision overruled a 35-year-old decision from the United States Supreme Court which barred the practice. How this decision is applied or used by various police and prosecutorial authorities remains to be seen. If we have a situation involving an unsophisticated defendant (i.e. a defendant that is unaware of his or her right to remain silent in the absence of their lawyer), the potential for abuse may be huge. We'll just have to wait and see.

Our collection litigation success.

We just obtained a collection litigation success for one of our wholesale food product clients. We had obtained what might have been initially perceived as an uncollectable judgment. However, with some persistence, we were able to track down the judgment debtor and discovered that the judgment debtor had started a new business. We used a legal technique that permitted us to seize that business until our entire judgment was paid in full. We were happy to mail our client their check this past week.

We are going to argue a "dog attack" case at the Supreme Court of Ohio.

We are going to argue a case later this fall in the Supreme Court of Ohio. The Supreme Court of Ohio will hear arguments about a case involving a dog mauling of a young child in Akron, Ohio. The trial court issued a ruling that forbid us from presenting the jury with evidence that the same dog had attacked another person about one month earlier. We won the issue at the Court of Appeals. See http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4689.pdf. However, the lawyers for the attacking dog have convinced the Supreme Court of Ohio to decide whether the Court of Appeals got it right. Stay tuned for details.

Supreme Court of Ohio to Rule on Drugs-Into-Jail Case.

The Supreme Court of Ohio will hear arguments on Tuesday, May 19, 2009 on a drug conviction case that came out of Cuyahoga County. The defendant in that case was convicted for having marijuana in his pants cuff when he was conveyed into the County Jail on a drug arrest. The defendant was convicted at trial, but the Cuyahoga Court of Appeals reversed the conviction on the basis that the defendant was not in control of his person after he was arrested by the police. See State v. Cargile: http://www.sconet.state.oh.us/rod/docs/pdf/8/2008/2008-ohio-2783.pdf.

The Ohio Supreme Court has taken up the issue at the request of the prosecution. We will try to update you all when we find out the results of the decision by the Supreme Court of Ohio.